Attorney Marc Toberoff learned today that he won’t be penalized as DC Comics and Warner Bros desired him to be in their grinding Superman copyright legal battle. In a short but acerbic order (read it here) issued Friday Judge Otis Wright, II denied a motion for sanctions against the Man of Steel heirs’ lawyer by the Warner subsidiary. In a motion first filed last fall and reactivated earlier this year, Warner alleged that Toberoff and his companies suppressed evidence in the discovery process in the long ongoing case. Judge Wright says forget about it. “The Court comes away from this investigation with the view that DC’s Motion for Evidentiary Sanctions is really just a rehashing of the tortured course of discovery in these Superman matters. Now with the benefit of hindsight (and relatively newfound possession of a multitude of documents to which DC may not have been entitled but for the theft of those documents from Toberoff’s office and their subsequent disclosure to Warner Brothers), DC seeks to open a widereaching inquiry into attorney and Defendant Marc Toberoff’s prior privilege assertions and privilege-logging practices,” he wrote Friday.
Related: Lawyer For Superman Heirs Want DC Comics Suit Dismissed
In 2004, Toberoff representing the heirs of Superman co-creator Jerry Siegel sued DC Comics and Warner Bros over the rights to the man from Krypton. In May 2010, the studio sued Toberoff directly. In a big blow to the efforts of the heirs of Siegel and co-creator, Joe Shuster, the Ninth Circuit Court of Appeal on January 10 essentially gave Warner Bros full rights to the superhero character and the freedom to move forward with its Superman big screen reboot Man of Steel and other related properties without the threat of further legal action by the creators’ heirs and estates. The seeking of sanctions against Toberoff, who is seeking to revive his case, was a parting blow from the studio. One the judge wasn’t buying. While stating that “the Court is admittedly deeply troubled by Toberoff’s repeated failure to update his privilege logs,” the judge also said that the record does not support a clear inference that this logging inaccuracy was the result of a deliberate attempt to mislead the Court or DC Comics; rather, it appears more likely the result of a misplaced reliance on the attorney-client privilege and the related joint-litigation privilege.” In fact, Judge Wright chided DC for its maneuver. “The Court is skeptical of DC’s contention that any perceived deception here caused it any real prejudice, as the letters at issue here actually serve more to discredit DC’s cries of intentional interference than they do to bolster them,” he wrote. “The Court could go on, but to no productive end,” Judge Wright added in closing.
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